Restoring Agency Norms

Daniel Farber

Dec. 15, 2020

This post was originally published on Legal Planet. Reprinted with permission.

Donald Trump prided himself on his contempt for established norms of presidential action. Whole books have been written about how to restore those norms. Something similar also happened deeper down in the government, out in the agencies like the U.S. Environmental Protection Agency (EPA) that do the actual work of governance. Trump appointees have corrupted agencies and trashed the norms that support agency integrity. It will take hard work to undo the harm. White House leadership is important, but success will require dedicated effort by the agency heads appointed by Biden.

Scientific integrity. The role of science is the most obvious example of norm busting under Trump. Whether it is EPA, the National Oceanic and Atmospheric Administration (NOAA), the Food and Drug Administration (FDA), or the Centers for Disease Control and Prevention (CDC), the Trump administration shoved aside mainstream scientists in favor of ideologues and fringe figures. Agencies need to adopt stringent scientific integrity standards and ensure that good science won't be squelched in favor of political expediency.

Ethics rules. Much stricter ethics standards are also necessary. The Trump administration was notorious for conflicts of interest, as it staffed agency positions with industry lobbyists and lawyers. Never again should an industry lobbyist be appointed to supervise that industry. Congress could help codify some of the conflict of interest rules. Short of that, the rules should be incorporated into agency regulations rather than merely remaining guidelines.

Transparency. Agency transparency was another victim of the Trump years. Political appointees were inserted into the Freedom of Information Act (FOIA) process to prevent disclosure of anything that might embarrass the administration. We need to restore control of disclosure to nonpolitical professionals. Also in terms of public information, websites need to be restored so that information on climate science and other topics disfavored by Trump will once again be available to the public. And agency press officers need to step back from attacks on press coverage and focus on communicating the agency's activities to the public.

Agency independence. Not only has power migrated from professionals to political appointees within agencies, it has also migrated upward from small agencies to larger departments. It was once an extraordinary event for the Secretary of Health and Human Services (HHS) to overrule FDA. During the COVID outbreak, that seems to have been a frequent occurrence under the Trump administration. That may be legal, but it's not good practice. FDA's political independence and professional integrity are important to its effectiveness, and the same is true of other such agencies.

Non-politicized enforcement. Enforcement is another area where the Trump administration went beyond its predecessors. Enforcement efforts virtually collapsed in some agencies such as the EPA, and what enforcement remained was subject to political interference. That politicization was most obvious in the Justice Department, where career prosecutors were shunted aside by Bill Barr in order to pursue Trump's opponents and reward his friends. Agency heads must make it clear that the law actually will be enforced and will be enforced without fear or favor. In the environmental area, citizen suits are an important backup. Congress could assist by reducing some of the procedural barriers that can make those suits more difficult to bring.

Financial probity. Finally, there are financial issues. The Trump administration has played fast and loose with appropriations, stretching legal authority to reallocate funding to its limits and often beyond. Personal travel by appointees, legally dubious new programs, and sweetheart contracts with political or personal allies — all of these have happened over and over. Congress needs to use its oversight powers, including investigations by the Government Accountability Office (GAO), much more vigorously. We ought to require regular audits for government agencies, just like businesses have to undergo.

The approach of the Trump administration was simple: politicize every possible government decision. That wasn't just the approach of the White House. It was enthusiastically carried out within agencies themselves. We need to restore basic principles of good government, lest politicized agency enforcement, science, and accounting start to seem like business as usual.

Top photo by the Natural Resources Defense Council, used under a Creative Commons license.

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